Broadhead v. Jones , 39 Ala. 96 ( 1863 )

A. J. WALKER, C. J.

[1.] In rejecting D. E. Dunlap, as an incompetent witness for the defendant, the court below brought itself in conflict with the decision in Rupert & Cassity v. Elston, (35 Ala. 79,) and committed an error for which its judgment must be reversed.

The charges given, and the charges asked and refused, involve several material questions; and we proceed to adjudicate those questions so far as may be necessary to guide the court below on a future trial.

[2.] Sections 3283 and 3284 of the Code pertain to the offense of supplying liquor to a slave. The next section prescribes a punishment for buying or receiving from a slave “ any other article or commodity, of any kind or description, without the consent of the master, owner, or overseer of such slave, verbally or in writing, expressing the articles permitted to be sold to,or bought or received from such slave.” Under this law, it would be an indictable offense to receive money on loan from a slave, in person, or through the known representation of another, without the consent of the master, owner, or overseer, expressing that the money was permitted to be loaned. — Stanley v. Nelson, 28 Ala. 514. Therefore, if the note in this case was given for money so loaned, the consideration is illegal, and the note void. It is a question which occurs to us, whether the loan of money by a slave would not be inconsistent with his status, and with the public policy and law controlling it; and whether, therefore, any contract in consideration of such loan would not be illegal and void, even though made with the master’s consent. — Love v. Brindle, 7 Jones’ Law, (N. C.) 560; White v. Cline, ib. 374. But we think the decision of, this question will not be necessary in this case, and we pretermit any consideration of it.

A slave’s earnings, or acquisitions, belong to the master. The money, for the loan of which the note in this case was given, if the product of the slave’s earnings, would belong to the master, who could recover it in an action for money had and received.— Webb v. Kelly, 37 Ala. 333; Sterrett's Executor v. Kaster, 37 Ala. 366; Jones v. Nirdlinger, 20 Ala. 488; Shanklin v. Johnson, 9 Ala. 271. The suit here, however, is not for the recovery of the money, but upon the note given by the borrower for the loan of it. This note, as we have already seen, is void, if the money was loaned by the slave. If, however, the payee of the note, Davis, having the money in his possession, loaned it out on his own account, and not-for the slave, and took the note payable to himself, the case is presented of one man’s converting to his use the money of another, and taking a note for the loan of it payable to himself. If that should be the case presented on a future trial, the question will arise, whether a constructive trust in favor of the master, who was the owner of the money, attached to the note given to the payee in consideration of the tortious loan of the money. If such a trust arose, the master of the slave would be the equitable owner of the note, and he, or his representative, might maintain an action on it, under the authority of section 2129 of the Code. But no such trust would arise in the case above stated. Where one occupying some fiduciary relation to the owner of money converts it into something else, the law implies a trust in favor of the owner of the money at his election; but this doctrine does not apply, unless some fiduciary relation existed. 1 Lead. Cases in Eq. (Hare & W.’s notes,) 277; 2 Fonb. Eq. (top) 423, (marg.) 118 n.; U. S. v. Hand, 2 Wash. Cir. C. R. 435-445 ; 2 Story’s Eq. Jur. § § 1258, 1259, 1260, 1261; Taylor v. Plumer, 3 M. & S. 574 ; Getman v. Getman, 1 Barb. Ch. R. 499-514; Campbell v. Drake, 4 Iredell’s Eq. 94; Thompson v. Perkins, 3 Mason, 235; Wallace v. Duffield, 2 S. & R. 521; Union Bank v. Baker, 8 Hump. 447.

It lias been decided in Tennessee, tbat one wbo loans out money deposited by a slave with bim, and takes a note payable to himself, may sue in his own name and recover upon it. — Jenkins v. Brown, 6 Humph. 299.

[3.] The matters of account against Dick, his status as a slave being established,were incompetent as evidence for any purpose which we can perceive. They certainly would not constitute a valid set-off in this case.

[4.] Under our rule of practice, the onus of proving the beneficial ownership of a note is not cast upon the plaintiff, without a svPrn plea. — Ala. & Miss. R. R. Co. v. Sanford & Reid, 36 Ala. 703, The plea in this case, which contests the plaintiff’s ownership of the note, must be stricken out, on motion, unless it is sworn to.

Reversed and remanded.